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G.R. No. 180440               December 5, 2012

Facts:

This case stemmed from a Complaint for Damages filed on 28 August 1996 by petitioner Dr. Genevieve L.
Huang against herein respondents Philippine Hoteliers, Inc. (PHI) and Dusit Thani Public Co., Ltd. (DTPCI), as
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owners of Dusit Thani Hotel Manila (Dusit Hotel); and co-respondent First Lepanto Taisho Insurance
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Corporation (First Lepanto), as insurer of the aforesaid hotel. The said Complaint was premised on the alleged
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negligence of respondents PHI and DTPCI’s staff, in the untimely putting off all the lights within the hotel’s
swimming pool area, as well as the locking of the main entrance door of the area, prompting petitioner to grope
for a way out. While doing so, a folding wooden counter top fell on her head causing her serious brain injury.
The negligence was allegedly compounded by respondents PHI and DTPCI’s failure to render prompt and
adequate medical assistance.

Issue:

Whether or not Philippine Hoteliers is liable based on quasi-delict

Held:

NO

It is evident from petitioner’s Complaint and from her open court testimony that the reliance was on the alleged
tortious acts committed against her by respondents PHI and DTPCI, through their management and staff. It is
now too late in the day to raise the said argument for the first time before this Court.
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Petitioner’s belated reliance on breach of contract as her cause of action cannot be sanctioned by this Court.
Well-settled is the rule that a party is not allowed to change the theory of the case or the cause of action on
appeal. Matters, theories or arguments not submitted before the trial court cannot be considered for the first
time on appeal or certiorari. When a party adopts a certain theory in the court below, he will not be permitted to
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change his theory on appeal for to permit him to do so would not only be unfair to the other party but it would
also be offensive to the basic rules of fair play, justice and due process. Hence, a party is bound by the theory
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he adopts and by the cause of action he stands on and cannot be permitted after having lost thereon to
repudiate his theory and cause of action and adopt another and seek to re-litigate the matter anew either in the
same forum or on appeal. 74

In that regard, this Court finds it significant to take note of the following differences between quasi-delict (culpa
aquilina) and breach of contract (culpa contractual). In quasi-delict, negligence is direct, substantive and
independent, while in breach of contract, negligence is merely incidental to the performance of the contractual
obligation; there is a pre-existing contract or obligation. In quasi-delict, the defense of "good father of a family"
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is a complete and proper defense insofar as parents, guardians and employers are concerned, while in breach
of contract, such is not a complete and proper defense in the selection and supervision of employees. In quasi-
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delict , there is no presumption of negligence and it is incumbent upon the injured party to prove the negligence
of the defendant, otherwise, the former’s complaint will be dismissed, while in breach of contract, negligence is
presumed so long as it can be proved that there was breach of the contract and the burden is on the defendant
to prove that there was no negligence in the carrying out of the terms of the contract; the rule of respondeat
superior is followed.77
Viewed from the foregoing, petitioner’s change of theory or cause of action from quasi-delict to breach of
contract only on appeal would necessarily cause injustice to respondents PHI and DTPCI. First, the latter will
have no more opportunity to present evidence to contradict petitioner’s new argument. Second, the burden of
proof will be shifted from petitioner to respondents PHI and DTPCI. Petitioner’s change of theory from quasi-
delict to breach ofcontract must be repudiated.

As petitioner’s cause of action is based on quasi-delict, it is incumbent upon her to prove the presence of the
following requisites before respondents PHI and DTPCI can be held liable, to wit: (a) damages suffered by the
plaintiff; (b) fault or negligence of the defendant, or some other person for whose acts he must respond; and (c)
the connection of cause and effect between the fault or negligence of the defendant and the damages incurred
by the plaintiff. Further, since petitioner’s case is for quasi-delict , the negligence or fault should be clearly
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established as it is the basis of her action. The burden of proof is upon petitioner. Section 1, Rule 131 of the
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Rules of Court provides that "burden of proof is the duty of a party to present evidence on the facts in issue
necessary to establish his claim or defense by the amount of evidence required by law." It is then up for the
plaintiff to establish his cause of action or the defendant to establish his defense. Therefore, if the plaintiff
alleged in his complaint that he was damaged because of the negligent acts of the defendant, he has the
burden of proving such negligence. It is even presumed that a person takes ordinary care of his concerns. The
quantum of proof required is preponderance of evidence. 80

In this case, as found by the trial court and affirmed by the Court of Appeals, petitioner utterly failed to prove
the alleged negligence of respondents PHI and DTPCI. Other than petitioner’s self-serving testimony that all
the lights in the hotel’s swimming pool area were shut off and the door was locked, which allegedly prompted
her to find a way out and in doing so a folding wooden counter top fell on her head causing her injury, no other
evidence was presented to substantiate the same. Even her own companion during the night of the accident
inside the hotel’s swimming pool area was never presented to corroborate her allegations. Moreover,
petitioner’s aforesaid allegations were successfully rebutted by respondents PHI and DTPCI. Here, we quote
with conformity the observation of the trial court, thus:

x x x Besides not being backed up by other supporting evidence, said statement is being contradicted by the
testimony of Engineer Dante L. Costas, who positively declared that it has been a normal practice of the Hotel
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management not to put off the lights until 10:00P.M. in order to allow the housekeepers to do the cleaning of
the pool’s surrounding, the toilets and the counters. It was also confirmed that the lights were kept on for
security reasons and so that the people exercising in the nearby gym may be able to have a good view of the
swimming pool. This Court also takes note that the nearby gymnasium was normally open until 10:00 P.M. so
that there was a remote possibility the pool area was in complete darkness as was alleged by herein petitioner,
considering that the illumination which reflected from the gym. Ergo, considering that the area were sufficient
(sic) illuminated when the alleged incident occurred, there could have been no reason for the petitioner to have
met said accident, much less to have been injured as a consequence thereof, if she only acted with care and
caution, which every ordinary person is expected to do. 82

More telling is the ratiocination of the Court of Appeals, to wit:

Viewed from the foregoing, the question now is whether respondents PHI and DTPCI and its employees were
negligent? We do not think so. Several factors militate against petitioner’s contention.

One. Petitioner recognized the fact that the pool area’s closing time is 7:00 p.m.. She, herself, admitted during
her testimony that she was well aware of the sign when she and Delia entered the pool area. Hence, upon
knowing, at the outset, of the pool’s closing time, she took the risk of overstaying when she decided to take
shower and leave the area beyond the closing hour. In fact, it was only upon the advise of the pool attendants
that she thereafter took her shower.

Two. She admitted, through her certification, that she lifted the wooden bar countertop, which then fell on to her
head. The admission in her certificate proves the circumstances surrounding the occurrence that transpired on
the night of 11 June 1995. This is contrary to her assertion in the complaint and testimony that, while she was
passing through the counter door, she was suddenly knocked out by a hard and heavy object. In view of the
fact that she admitted having lifted the countertop, it was her own doing, therefore, that made the counter top
fell on to her head.
Three. We cannot likewise subscribe to petitioner’s assertion that the pool area was totally dark in that she
herself admitted that she saw a telephone at the counter after searching for one. It must be noted that petitioner
and Delia had walked around the pool area with ease since they were able to proceed to the glass entrance
door from the shower room, and back to the counter area where the telephone was located without
encountering any untoward incident. Otherwise, she could have easily stumbled over, or slid, or bumped into
something while searching for the telephone. This negates her assertion that the pool area was completely
dark, thereby, totally impairing her vision.

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The aforementioned circumstances lead us to no other conclusion than that the proximate and immediate
cause of the injury of petitioner was due to her own negligence.